Opinion
Case No. 03-60327-CIV-COOKE/McALILEY.
November 24, 2004
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
THIS CAUSE is before the Court on Defendant's Motion for Summary Judgment [DE 82]. The Court has considered the motion and the record, and being fully advised in the premises, it is hereby
ORDERED and ADJUDGED that Defendant's Motion is GRANTED.
I. Relevant Factual and Procedural Background
Plaintiff, Jose Bedoya ("Bedoya"), sued Defendant, Hilti, Inc., ("Hilti") an Oklahoma corporation, qualified to do business in the State of Florida, for violation of 42 U.S.C. § 1981. Bedoya claims that Hilti discriminated against him because of his race/ethnic characteristics/ancestry in various terms and conditions of his employment, and also retaliated against him for complaining about the said alleged discrimination.Defendant Hilti is a company involved in the manufacturing and distribution of construction tools throughout the United States. Plaintiff Bedoya, a Columbian national, was a warehouse tool repair employee at a Hilti Super Center ("Hilti Center") in Miami, Florida. Bedoya claims that a particular sales position became available in Hilti's Miami office where he worked, and Tim Cain ("Cain"), a Regional manager at Hilti, discriminated against him by selecting a significantly less experienced and qualified Cuban woman for the position.
Bedoya subsequently complained to Hilti's Human Resources Department, and contacted Defendant's national legal department located in Tulsa, Oklahoma, about the race/ethnic discrimination that he perceived at Hilti. After lodging his complaint, Bedoya alleges that Hilti began "papering" his personnel file, with unwarranted negative comments, and in January of 2003, Bedoya, an employee of Hilti's for eighteen years, was terminated. Bedoya contends that Hilti's actions constituted unlawful termination and retaliation, which were motivated by his complaints of unlawful race/ethnic discrimination. Hilti, on the other hand, claims that based on the reorganization of its distribution system, the Company could eliminate one warehouse position in Miami. The position to be eliminated was either Bedoya's or that of Jesus Perez ("Perez"), a Cuban national. Hilti maintains that it chose to retain Perez because he was a superior employee and Bedoya was not, and further, that Cain did not know that Bedoya had complained about discrimination.
II. Legal Standard
Summary judgment is appropriate if the pleadings, depositions, and affidavits show that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "material" if it is a legal element of the claim under applicable substantive law which might affect the outcome of the case. Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Allen v. Tyson Foods, 121 F.3d 642, 646 (11th Cir. 1997). An issue is "genuine" if the record taken as a whole could lead a rational trier of fact to find for the non-moving party. Allen, 121 F.3d at 646. On a motion for summary judgment, the Court must view all the evidence and all factual inferences drawn therefrom in the light most favorable to the non-moving party, and determine whether that evidence could reasonably sustain a jury verdict. Celotex, 477 U.S. at 322-23; Allen, at 646. The Supreme Court explained the summary judgment as follows:
[T]he plain language of Rule 56(C) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which the party will bear the burden of proof at trial. In such situation, there can be no genuine issue of material fact, since complete failure of proof concerning an essential element of all non-moving party's case necessarily renders all other facts immaterial.Celotex, 477 U.S. 317, 322-23 (1986).
While the burden on the movant is great, the opposing party has a duty to present affirmative evidence in order to defeat a properly supported motion for summary judgment. Anderson, 477 U.S. at 252. To meet this burden, the non-moving party "may not rest upon the mere allegations or denials of the adverse party's pleadings." Fed.R.Civ.P. 56(e). A mere "scintilla" of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative, is not enough. Id.; see also Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996) (conclusory allegations and conjecture cannot be the basis for denying summary judgment).
III. Analysis
A. Plaintiff's Claims Are Not Actionable Under 42 U.S.C. § 1981
Bedoya claims that Hilti discriminated against him based on his ethnicity and ancestry, but he has not shown, and the Court cannot discern from the record, sufficient facts to support such a claim. See Plaintiff's Brief, 5. Instead, Bedoya's claim sounds in national origin discrimination. Plaintiff's pleadings and Response to Defendant's Motion for Summary Judgment contain conclusory allegations of discrimination based on ethnicity and ancestry, but the facts in the record support a theory of discrimination based on national origin. In fact, Bedoya acknowledged in his deposition testimony that the main difference between himself and Jose Vargas ("Vargas") and Jesus Perez ("Perez"), two Cuban employees at Hilti, is that he was he was born in Colombia and they were born in Cuba, or are of Cuban parents. See Bedoya Dep., 18.
Vargas is of Cuban decent and works as the Hilti Center representative. He was in charge of the day to day operations of the facility, and is a management official. See Plaintiff's Statement of facts ("Plaint. State. Facts") at ¶ 5; see also Vargas Dep. at 5-7.
Bedoya also emphasizes that "[t]he Cubans, including Andy Diu ("Diu") and Vargas, would refer to Bedoya as that `damn Columbian,' and `these Colombians' in a derogatory manner." See Plaintiff's Statement of facts ("Stat. of Facts") at ¶ 9. Even Bedoya's attempt to gain support for his allegations that Hilti personnel made ethnic slurs about him fails. For example, Bedoya claims that Horlando Muniz ("Muniz"), another Hilti employee, "heard numerous racist and ethnic comments from the Cubans concerning Columbians . . . all the time." However, in Muniz' deposition, Muniz claims to not recall the exact comments that were made. See Muniz Dep, 147-148. In fact, the record reveals that some of the Cubans at Hilti would make negative remarks about Guatemalans, such as calling them "Chapin," which is apparently ethnically derogatory. But such comments were never made regarding Bedoya. Instead, Bedoya has only shown where the Cubans at Hilti made less than favorable comments regarding his national origin.
Muniz was born in Brooklyn, New York, but is of Puerto Rican ancestry. See Muniz Dep. at 11-12.
Although Bedoya may bring a claim of discrimination based on ethnicity and ancestry, a claim of discrimination based solely on the place or nation of origin is insufficient under 42 U.S.C. § 1981. See St. Francis College v. Al-Kharzraji, 107 S.Ct. 2022, 2028 (1987). Bedoya cites to Cardona v. American Express Travel Related Services Co., Inc., 720 F. Supp. 960 (S.D. Fla. 1989), for the proposition that a Columbian discriminated against by Cubans on the basis of his Columbian ethnicity is entitled to proceed under § 1981. Cardona, however, was decided while that matter was in a motion to dismiss posture, where the plaintiff only had to state a claim upon which relief could be granted.
Relief for Bedoya's claim of racial/ethnic discrimination could be granted under 42 U.S.C. § 1981, if the facts in the record were as alleged in Bedoya's Complaint. For example, if Bedoya had provided evidence of instances where the Cubans at Hilti, especially his superiors, made ethnically derogatory remarks about him, his claims would have survived Defendant's Motion for Summary Judgment. Bedoya's conclusory allegations of ethnic/racial discrimination are insufficient to overcome Defendant's motion for summary judgment. At best, the record may support a claim for national origin discrimination, which, as stated above, cannot be brought pursuant to 42 U.S.C. § 1981. On summary judgment, a mere "scintilla" of evidence in favor of the non-moving party, or evidence that is merely colorable or not significantly probative, is insufficient. See Mayfield., 101 F.3d at 1376. Because Bedoya lacks evidence of ethnic/racial discrimination his Complaint fails in its entirety.
Bedoya's claims for failure to promote, discriminatory discharge and retaliation fail as they are all premised on Bedoya's national origin claim, which was brought pursuant to 42 U.S.C. § 1981. See Complaint, ¶ 1 (Bedoya states that "[t]his suit is brought against Defendant pursuant to 42 U.S.C. § 1981.") It is hereby
ORDERED and ADJUDGED that Defendant's Motion for Summary Judgment is GRANTED. All pending motions are MOOT, and this CASE IS CLOSED.
DONE.